## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Chenow eth , 2013 IL App (4th) 120334

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. BA RBARA J. C HENOWETH, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-12-0334

Filed October 11, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for unlawful financ ial exploi tation of an elder ly
p er s o n was reve rsed wher e the indictment and subsequent information

wer e filed afte r the three -y ear limit ation period had expired, notwithstanding the State’s claim that the extended statute of limit ations applied based on the filing of the indictment and subsequent information within one y ear of t h e date of the State’s Attorney ’s “discove ry of the offe nse,” i.e.
, the date he beca me awa re of the investigative file, since the

cruc ial date for purposes of th e ex t ended statute of limit ations was the date the a g g rieve d person discovere d the offe nse and, here
, that was the date the ag g rieve d person lear ned that d e f

e n d a nt h a d wr itten unauthorized chec ks from the ag g rieve d person’ s acc ount, and the indictment was filed more than one y ear

afte r that date

.

Dec ision Under Review Appea l from the Circuit Court of Adams County
, No. 09-CF- 725; the Hon. Will iam O. May s, J udg e, pre siding.

J udg ment Vac ated.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and J aniee n R. Tarr ance , all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J onathan H. Ba

rnar d, Sta t e’ s At torney , of Quincy (Patrick Delfino, Robert J

. Bide rm an , an d Anastac ia R. Br ooks, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE KNECHT deliver ed the judg ment of the c ourt, with opinion.
J ustice Holder

Whit e conc urre d in the judgme nt and opinion.
J ustice Pope dissented, with opinion.

OP INION

¶ 1 In J anuar

y 2012, following a bench t rial, defendant, Bar bara J

. Chenowe t h
, was found
g uilty of unl awf

ul financ ial exploi tation of an elderly person ( 720 I L CS 5/ 16-1.3(a ) (West 2004)). ¶ 2 In Marc h 2012, defe ndant fi led (1) a mot ion to vacate j udg ment and dis miss the ca use d u e t o the ex piration of t he st atute of limit ations and (2) a mot ion to vaca te j u d gm en t an d dismiss the ca

use due to failure of the S tate to prove defe ndant guilty beyond a re asonable doubt. In April 2012, the trial court denied both motions and defe ndant was sentenc ed to four
y ear s’ probation and order ed to pay $32,266 restitution. ¶ 3 On appea l
, d ef en d an t as s erts (1) her conviction and sentenc e for unlawful fina ncial exploi tat i o n o f an elder ly person (720 I L CS 5/16-1.3(a) (West 2004)) must be vacated beca use the in d i ct m en t an d later information char g ing her with the offe nse (a) wer e filed afte r the statute of limit ations had expired and (b) failed to alleg e any circ umstances that would extend the limit ations period; and (2) if her conviction and sentenc e are aff irmed, she is entitled to $5 credit ag ainst her f ine for time spe nt in pretrial custody

.

¶ 4 I . BA CKGROUND ¶ 5 In October 2008, Detec tive Thomas L iesen was conta ct ed b y Vi ck i e Tipton, head of
g uardia nship for the West Central I llinois Are a Age ncy on Ag ing ( Ag ency on Ag ing) , and Donna Schutte, the I llinois state reg ional ombudsman for the are a. They in f o r me d h im money from the Marc h 2005 sale o f E l l a S t at h akis ’ home was missing. At the time of the Marc h 2005 sale throug h August 2008, defe ndant held the power of attorney for Ella. In September 2008, Ly nn Niewohne r fr om the Ag ency on Ag ing be came Ella’s powe r of attorney

. ¶ 6 On October 15, 2008, Detec tive L iesen interviewe d Ella. Acc ording to Detec tive L iesen, Ella “wa s wonder ing wher e the funds went from the sale of her home, wanted to know wher e

-2-it went. She had never been told, and she just wanted to know wher e it was.” Two day s later,

he issued a subpoena for her Ba nk of Americ a re cords. He rec eived the r ecor ds in the mail on Dec ember

2, 2008. ¶ 7 Whil e ex amining Ella’s bank records, Detec tive L iesen no t i ced severa l chec ks written by d ef en d an t and drawn on Ella’s acc ount did not appea r to be for Ella’s benef

it. These included multipl e chec ks written fo r ca s h and to Mark Twain Casinos, one to the utilit y company for defe ndant’s addre ss, and one to the telephone co m p any for defe ndant’s daug hter’ s t elephone

. On December 5, 2008, Detec tive L iesen spoke with Ella ag ain. El la told him she h ad n o t g iven defe ndant permission to write these chec ks or to pay other people’ s bills. ¶ 8 On Dec ember 11, 2008, Detec tive L iesen interviewe d defe ndant. Def endant’ s daug hter, Christina Shannon, was also prese nt during the interview. Def endant told Detec tive L eisen

some of the money from the sale of Ella’s home was used to pay Ella’s bills and some of the
money was used to pay Shannon back money she “had fronted to keep the house g oing and
to g et the house rea dy for sale.” Def endant also explained she had taken out a loan in Ella’s

name to make repa irs to Ella’s h o u s e, rea dy the house for sale, and to pay Ella’s nursing home bill. Specifica lly
, defe ndant stated she had purcha sed window cover ings, drape s, and paint for Ella’s house, and had paid persons to paint the i nterior and exterior of t he house. Def endant explained she did not have any rec eipts, and any she may have h ad
, s h e had alre ady g iven to the I llinois Depa rtment of Human Service s. Detec tive L iesen further noted defe ndant used $4,000 of the sale proce eds to pur chase a car for Shannon as compensation for work she had done for Ella, and he believed defe ndant kept $6,000 of the sale proce eds for he rself. ¶ 9 On J anuar

y 22, 2009, Detec tive L i esen sent a repor t of his investigation to the State’s Attorney ’s office

. On Dec ember 21, 2009, an Adams County indictment was filed char g ing defe ndant with three counts of unlawf ul financia l expl oitation of an elde rly person. ¶ 10 In May 2010, defe ndant filed a motion to dismiss the indictment, a ssertingprosec ution

was not commence d within the statutory limit ations period. On J une 3, 2010, the State filed

a motion to dismiss the bill of indictment a nd for leave to file an infor mation alleg ing why the statute of limit ations did not prohibit its char g es. On J une 9, 2010, the trial court g rante d the State’s motion. That same day
, the State filed an information ch arging defe ndant with three counts of unlawful financ ial exploi tation of an elder ly person. T h e State alleg ed the
statute of limit ations was stay ed “in that this same char g e was filed ag ainst the defe ndant on 12-21-09 by Bill of Indictment, which was within one (1) year of the proper prosec uting office r, the Adams County State’s Attorney
, b ec o ming awa re of the offe nse when the investigative file *** wa s ref err ed to that prosec uting of fice r on 1-22- 09.” ¶ 11 On J une 14, 2010, def endant filed a motion to dism iss the information, ag ain asser ting the char g es wer e filed beyond the applicable statute of limit ations. On J uly 12, 2010, the trial
court denied defe ndant’s motion to dismiss
, finding “the limit ations period did not beg in to

run until the police repor

t w as deliver ed to the prope r prose cutingoffice r which is J anuar y 22, 2009.” ¶ 12 In October 2010, defe ndant waived her rig ht to a jury trial. In Marc h 2011, defe ndant’s

-3-bench trial commence d. Both parties submitt ed written closing arguments. In J anuar y 2012, the trial court found defe ndant g uilty of unlawful financ ial exploi tation of an elder ly person. ¶ 13 In Marc h 2012, defe ndant fi led (1) a mot ion to vacate j udg ment and dis miss the ca use due to the ex piration of t he st atute of limit ations and (2) a m o t i o n t o v ac ate judgment and dismiss the ca

use due to failure of the S tate to prove defe ndant guilty beyond a re asonable doubt. In April 2012, the trial court denied both motions and defe ndant was sentenc ed to four
y ear s’ probation and order ed to pay $32,266 restitution. ¶ 14 This appea l followed.

¶ 15 I I . ANALYSI S ¶ 16 On appeal, defe ndant asser ts (1) her conviction and sentenc e for unlawfu l fi n an ci al exploi tation of an elder ly person (720 I L CS 5/16-1.3(a) (West 2004)) m u s t b e vacated beca use the i n d i ct m en t and later information char g ing her with the offe nse (a) wer e filed afte r the statute of limit ations had expired and (b) failed to alleg e any circ umstances that would extend the limit ations period; and (2) if her conviction and sentenc e are aff irmed, she is entitled to $5 credit ag ainst her f ine for time spe nt in pretrial custody

.

¶ 17 A. Validity of the Indictment and Subsequent Information ¶ 18 Section 3-5(b) of the Criminal Code of 1961 (Criminal Code) pr ovides as follows:

“Unless the statute descr ibing the offe nse provides otherwise, or the period of limit ation is extended by Section 3-6, a prosec ution for any offe nse not desig nated in S ubsection (a) must be commence d within 3 y ears af t er t h e comm ission of the offe nse if it is a felony ***.” 720 I L CS 5/ 3-5(b) (West 2004). ¶ 19 I n t his case , the S tate charg ed defenda nt by indictment on Dec ember 21, 2009, an d b y subsequent information on J une 9, 2010, for cr i m es comm itted on or about Dec ember 1, 2004, throug h J uly 31, 2005. Thus, the State char ged d efendant with unlawful financ ial exploi tation of an elder ly person beyo n d the three -y ear limit ation provided by statute. To circ umvent the g ener al statute of limitations, t he State invoked se ction 3-6 of the Criminal Code in the subsequent information, which extends the statute of limit ations, in part, under the followingconditions: “(a ) A prosec ution for theft i n v o l ving a brea ch of a fiduciar y obligation to the
ag g rieve d person may

be commenc ed as f

ollows:

*** (2) In any other instance, within one y ear afte r the discovery of the offe nse by an ag g rieve d person, or by a person who has leg al capa city t o re p re sent an ag g rieve d
person or has a le g al duty to r eport the offe nse, and is not himself or herse lf a party to the offe nse; or in the abse nce of such discover

y , within one y ear afte r the prope r prosec u t i n g o ff

i cer become s awa

re of the offense. However
, in no such case is the period of limit ation so extended more than 3 y ear s b ey o n d the expiration of the period other

wise applica

ble.” 720 I L CS 5/ 3-6 (West 2004). Specifica lly
, the S tate asserted the “cha rg e wa s filed ag ainst the defe ndant on 12-21-09 by

-4-Bill of Ind i ct m en t , which was within one (1) y ear of the proper prosec uting office r, the

Adams County State’s Attorney
, becoming awa re of the offe nse when the investigative file *** was re fer

red to that prose cuting office r on 1-22- 09.” ¶ 20 Howeve r, defe ndant contends beca use Ella, or a person who had the capa city to le g ally
repr esent Ella, discovere d the offense, the State was required “to alleg e and prove that the char g es wer e filed within one y ear of the discovery of the offe nse by [Ell a] or one who had the leg al capa city to r epre sent [her],” r ather than within one y ear of the prose cuting office r becoming awa

re of the offe nse. Be cause the State did not alleg e and prove as such, defe ndant
argues the indictment was invalid on its fa ce , re quiring her sentenc e and conviction to be

vacated. The State disag ree s, asser ting it pleade d the appropr iate exception beca use neither Ella nor a person with the leg al capa city to repr esent her had actua l knowledg e that defe ndant had committed the offe nse an d
, t h us, could not have discovere d the offe nse within the meaning of the statute. In resolving this issue, we must deter mine what “discove ry of the offe nse” me ans within the context of section 3-6(a )(2) of the Criminal Code. ¶ 21 We revie w de novo questions of statutory construction. People v. Campa
, 217 I ll. 2d 243, 252, 840 N.E.2d 1157, 1164 (2005)

. ¶ 22 T h e fundame ntal rule of statutory construction is to asce rtain and g iv e ef fe ct t o t h e leg islature’s intent. People v. W hitney
, 188 I ll. 2d 91, 97, 720 N.E.2d 225, 228 (1999). The best indicator of the leg islature’s intent is the languag e of the statute and its plain meaning

. People v. Blair
, 215 I ll. 2d 427, 442-43, 831 N.E.2d 604, 614 (2005). A revie wing court will “not depar

t from the plain languag e of the statute by rea ding into it exceptions, limit ations,

or conditions that conflict with the express leg islative intent.” People v. Boclair
, 202 I ll. 2d 89, 100, 789 N.E.2d 734, 741 (2002). In construing a statute wh er e the same words or phrase s appea

r in differ ent parts, the words or phrase s will be g iven a consistent meaning if leg islative intent is not clea rly expressed to the contra ry

. People v. Lutz
, 73 I ll. 2d 204, 212, 383 N.E.2d 171, 174 (1978)

. ¶ 23 The State cites People v. McG real
, 4 I ll. App. 3d 312, 278 N.E.2d 504 (1 9 7 1), for the proposition “discove ry of the offe nse” require s knowledg e a penal statute has been violated. In McG real
, t h e appellate court–for the first time–construed the phrase “discove ry of the offe nse” as used in section 3-6(b) of the Criminal Code. See 720 I L CS 5/3-6(b) (West 2004) (“A prosec ution for any offe nse based upon misconduct *** by a public office r or employ ee may be commence d within one y ear afte r discovery of the offe nse by a person having a leg al duty t o re p o rt s u ch offe nse, or in the absenc e of such discovery
, within one y ear afte r the
proper prosec uting office r become s awa re of the offe nse.”)

. In McG real
, the State appea led the dismiss al of three counts of a four- count indictment on the basis they wer e barr ed by the
statute of limit ations. McG real
, 4 I ll. App. 3d at 315-17, 278 N.E.2d at 506-08. On April 30, 1 9 6 8
, t he office of the commi ssioner of buildings (Office ) bega n investigating alleg ati o n s of perjury ag ainst McGre al, a code enfor ceme nt inspector for the city of Chicag o. Id. at 315- 16, 278 N.E.2d at 507. On September 13, 1968, the Of fice conclude d its investigation and suspended McGre al. On J uly 3, 1969, a four- count indictment w a s returne d ag ainst McGre al. When the indictment was filed, the S t at e invoked section 3-6(b) of the Criminal Code,

asser ting the statute of limit ations beg an to run on September 13, 1968, the date the investigation co n cl u d ed

. Id. at 317, 278 N.E.2d at 508. McGre al, howeve r, claimed the

-5-statute of limit ations beg an to run on April 30, 1968, when the investigation into his alleg ed

perjury commence d. Id. ¶ 24 In resolving the issue, t h e Mc Gr ea l court had to deter mine whether “discove ry of the offe nse by a p er son having a leg al duty to repor t” occur red on the date the investigation

commence d (April 30, 1968) or the date it conclude d (September 13, 1968). (Interna l quotation marks omitted. ) Id. at 319, 278 N.E.2d at 509. After revie wing case law to

asce rtain the meaning of the word “discove ry ,” and noting “off ense” means a violation of a penal statute, the court conclude d “discove ry of the offe nse” within the context of trig g ering the section 3-6(b) statute of limit ations require d knowledg e a penal statute had been violated by a person with a leg al duty to repor t the offe nse. Id. at 321-22, 278 N.E.2d at 510-11. The
court found discovery
, if any , occur red on September 13, 19 6 8

– the date the building depar tment commissioner, the person with a leg al duty to repor t the offe nse, beca

me awa re of t he offense and suspended McGrea l; this was also the date the i nvestig ation conclude d. Id. at 322, 278 N.E.2d at 511. ¶ 25 This case is disting uishable from McG real beca use, despite the State’s contention, this

case involves discovery of the offe nse by Ella, the ag g rieve d person, rathe r than one with a leg al duty to repor

t t he offe nse. Def

endant asser

ts “discove ry of the offe nse” occur red as

ear ly as September 2008 (whe n Niewohne r repla ced defe ndant as Ella’s power of attorney ), but no later than Dec ember 5, 2008, when Ella informed Detec tive L iesen she had not g iven defe ndant permission to write cer tain chec ks and, thus, de fenda nt a sserts the latest date the State could cha

rg e def endant wa s Dec ember

5, 2009. We agree

. ¶ 26 The State argues discovery of the offe nse could not occur until Ella, or one who had the l egal capa city to repr esent her, beca me awa re defe ndant knowing ly and ille gal l y misappropriate d over $15,000 of Ella’s money , in br eac h of her fiduciar y relationship. See 720 I L CS 5/16-1.3(a) (Wes t 2 0 0 4 ) (T he offe nse of unlawful financ ial exploi tation of an elder ly person require s a person whom (1) stands in a position of trust or confide nce with the elder ly person to (2) knowing ly and by dece ption or i n t i m i dation (a) obtain control or (b) illega lly use t h e as s et s o f t he elderly person.)

. Howeve r, we hold it is not nece ssary for an
ag g rieve d p er s o n t o have knowledg e another has fulfilled ever y element of an offe nse as define d in the Criminal Code. Whether an actua l of fense has been committed is a question of fa ct for the trier of

fac t. ¶ 27 In thi s ca s e, E l l a k n ew when she spoke to Detec tive L iesen on Dec ember 5, 2008, defe ndant had written check s from her acc ount which she had not authorized. Detec tive L iesen specific ally asked Ella whether she had authorized cer tain chec ks or g iven defe ndant permission to pay someone else’s bills. Ella responde d she had not. This was more than mere suspicion. A s of Dec ember 5, 2008, Ella discovere d defe ndant misappropriate d her money and, thus, had knowle dg e an of fense had bee n committed. ¶ 28 Be cause we find E ll a

– th e a g gr ie v e d p erson–discove red the offe nse on Dec ember 5, 2008, the State was require d to commence its prosec ution no later than Dec ember 5, 2009. I t failed
to do so. The indictment an d subsequent information wer e filed by the State afte r the extended statute of limit ations as intended in section 3-6(a ) of the C ri m i n al C ode had expired. As a re sult, we vac ate de fenda nt’s conviction and se ntence

.

-6-¶ 29 B. Statutory Credit ¶ 30 Be cause we vacate defe ndant’s conviction and sentenc e, we need not addre ss whether she is entitled to statutory cre dit for time serve d in pretria l custody (see 725 I L CS 5/110-14 (West 2004)).

¶ 31 I I I . CONCL USI ON ¶ 32 We vacate def endant’ s conviction and sente nce.

¶ 33 Vac ated.

¶ 34 J USTI CE POPE, di ssenting. ¶ 35 Ella Stathakis is the “ag g rieve d person” fo r p u rp o ses of section 3-6(a) of the Criminal Code. 720 I L CS 5/3-6(a) (West 2004). That section provides for an extension of the statute of l imitations for thef

t involving a br eac h of a f iduciary duty

. The one-y ear extension runs from the time an ag g rieve d person discovers the offe nse or, in the absenc e of such discovery
, within one y ear afte r the prope r prose cuting office r become s awa re of the offe nse. Ella did
not discover t h i s o ff

ense and, there fore
, I disag ree with the majority ’s application of the statute to this si tuation. I n rea lity
, Offic er L iesen discovered the offe nse af ter intervie wing Ella, the defe ndant, and obtaining bank rec ords for sever al differ ent acc ounts. L iesen turned his repor ts over to the Adams County State’s Attorney in J anuar y 2009 and, thus, in my opinion, the statute of limit ations did not expire until J anuar y 2010. Be cause defe ndant was indicted in Dec ember

2009, Iwould find the prose cution timely . Acc ording ly , Idissent.

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